I dissent. The facts in this case are not nearly so complicated nor the federal cases, to which we must look for the applicable rule of law, so confusing as indicated in the Court's opinion. The case is comparatively simple. Plaintiff brought her action on the theory that her husband was killed while engaged in a train switching operation in intrastate or local commerce, and hence subject to the Workmen's Compensation Law of Utah, Rev. St. 1933, 42-1-1 et seq. The defense was that he was engaged in an operation which was in interstate commerce, and therefore the recovery for his death, if any, must be pursuant to the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59. The question was one of fact, to be determined by the Industrial Commission as the fact finding body, guided by the rules laid down in such cases by the federal courts.
The Industrial Commission found from uncontradicted evidence that the deceased was engaged in interstate commerce. The court's opinion decides we must hold as a matter of law that the operation in which deceased was engaged at the time of his death was intrastate commerce. With this holding I cannot agree. The rule applicable is that announced in New York Central H.R.Railroad Co. v. Carr, 238 U.S. 260, 35 S. Ct. 780,59 L. Ed. 1298, to the effect that the switching of an intrastate car out of an interstate train is interstate commerce. In that case the employee, at the moment of injury was setting the brakes on cars which had been switched out of the train. This was a necessary task in connection with the aligning or setting of the cars. *Page 44 There, as here, the movement of the interstate train was halted while the switching was done, and thereafter the workmen returned to the interstate train. Harrington at the moment of injury was crossing the highway for the purpose of opening the gates to the Chipman Mercantile-Utah Poultry Producers Association yard. This operation was necessary to the setting of the feed car in the yard of the Poultry Association.
The third paragraph of the Industrial Commission's Finding No. 3 reads as follows:
"That while delivering and spotting said car of poultry feed out of said interstate train it became necessary for said deceased to cross the public highway in American Fork in order to open said gates leading into the industrial siding into the Utah Poultry Company in order to enable deceased and other members of the crew to switch, deliver and spot said car of feed out of said interstate train; and while so crossing said highway to open said gate said deceased was struck by a motor truck being operated by Wayne Godfrey of Murray, Utah. * * *"
The Commission's finding has support in evidence establishing that the switching movement at American Fork was one transaction, having for its main purpose the spotting of the feed car, a car conceded to have been cut out of an interstate train, and therefore its movement was one in interstate commerce. We are not concerned with the justice or reasonableness of the rule which fixes the status of the workmen as in interstate or intrastate commerce. It is one made by the Supreme Court of the United States and is binding on us. In oral argument it was admitted by counsel for plaintiff to be a fair and just rule and one with which he had no quarrel. It was his contention that the rule did not apply because Harrington's last work was in the switching operation that had to do with the movement of the coal car, an intrastate transaction.
It was also conceded there could be no controversy in this case if the train crew had been engaged exclusively in spotting the feed car, that the whole transaction would have to be characterized as interstate. The question arises *Page 45 because after cutting the feed car from the interstate train and before spotting it the train crew received orders to also spot a coal car which had been on the house track for two or three days. The switching of the two cars already spotted was a mere incident to the spotting of the feed car and the coal car. But for the spotting of the feed car and the coal car there would have been no necessity to move the two cars already on the house track. They were in proper place and were not yet ready to be taken away. All movements in the switching operation had been accomplished up to the point of moving out the two spotted cars so that the feed car and the coal car could be placed north of them. In order to move these cars out and the others in, it became necessary to open the gate. While approaching the gate, Harrington was fatally injured. To finish the movement would have required the engine to proceed north through the open gate, attach the two cars, draw them out to the main line, couple on to the coal car and feed car, draw the four cars south on the industrial track past the switch, then push them north on the same track, leaving the cars in this position, the feed car farthest north, the coal car next, and the two other cars returned to their former position. It is perfectly apparent that the opening of the gate and movement of the two spotted cars was merely incidental to the proper placing of the feed car and the coal car.
If, however, and this is conceded, the mere fact that one interstate car in the train of sixteen cars classifies the entire train and its movements as interstate, including the spotting of cars for local delivery, then we cannot escape the conclusion that this switching operating must also be so characterized. The mere fact that the switching operation included an intrastate car of coal could not change the character of the switching of the feed car to an act in intrastate commerce.
Plaintiffs' argument was that the interstate feed car was left at rest on the main line, and the following switching operations related to the intrastate car of coal, and that *Page 46 while engaged in an act necessary to the movement of that car, Harrington was injured. They say:
"In the Harrington case the period of time that separates the state from the interstate work is when the feed car was left west of the switch at American Fork, with the brakes set, and the crew took up the separate task of moving the intrastate coal car to the Chipman Mercantile Company industry track and the further separable task of moving two intrastate cars on the industry track to make room for spotting the coal car and perhaps also the feed car."
Whether that is true or not is a question of fact which was for the Commission. The evidence supports its finding. The opening of the gate and movement of the two spotted cars were just as necessary to the spotting of the feed car as to the coal car. The feed car was not to be left on the main line where it remained temporarily with brakes set — not even while the coal car was spotted — but only while the crew placed the other cars in proper sequence so as to spot the feed car on the house track of the Utah Poultry Producers' Association and the coal car between it and the other two cars. Plaintiffs placed no reliance on a theory which would segregate each act of the switching operation. The intention clearly was to spot the feed car before moving on to the next station with the interstate train which was left on the main line track on the highway. Indeed, the feed car had to be moved and spotted before the train could proceed because it was on the main track and unless moved would block the way. The entire switching operation was one movement looking to the spotting of the feed car.
Plaintiffs concede that if the feed car had been directly taken to the gate, the opening of it would be incidental to interstate commerce and Harrington's act so characterized and his status fixed — not because the gate was intrastate, but because the car switched was interstate. The movement must also be interstate if it was necessary to move the two spotted cars in order to set the feed car behind them.
If the gate was opened to permit an interstate car to pass, the operation was one in interstate commerce; if it was *Page 47 opened to permit an intrastate car to pass, the status is one in intrastate commerce. What is the status when it is opened for an interstate and an intrastate car to pass in the same switching movement? Under the theory of the Carr Case the whole movement is colored or characterized by the interstate car. Harrington therefore was acting in interstate commerce.
The findings and conclusions of the Industrial Commission are fully supported by evidence and should be affirmed.